Parker v Ford[2011] QDC 163

DISTRICT COURT OF QUEENSLAND

1. [1]
   The application is one made under s 51A(5) of the Motor Accident Insurance Act 1994 seeking that the court order the compulsory conference to take place, alternatively dispensation from the requirement to hold the compulsory conference which is a step required to be taken before the applicant is entitled to commence a claim in the court in respect of personal injuries suffered by him in consequence of a motor vehicle accident on 25 November 2009.  The application is against the second respondent, which is the compulsory third party insurer of the first respondent, who is asserted to have unexpectedly executed a U-turn while driving her vehicle in the path of the plaintiff’s vehicle, causing a collision.  On 7 June 2010 the second respondent admitted liability.

2. [2]
   The second respondent has only recently engaged outside solicitors, being Mr Beirne’s firm.  The applicant has been represented by Mr Black’s firm.  They have been pressing for a compulsory conference for some time and, essentially, have been ignored.  In the early part of 2010, a report and subsequent notes of the applicant’s orthopaedic surgeon, associate professor Day were supplied to the second respondent.  Their medical information was completed by provision of medico-legal reports of neurosurgeon Dr Scott Campbell, clinical psychologist, Peter Stoker and occupational therapist, Lesley Stephenson.  Their reports were sent to the second respondent under cover of letters of 5 November 2010, 12 November 2010 and 6 December 2010.  The covering letters take a pretty standard form, all plainly foreshadowing interest in the second respondent’s entitlement to have the applicant independently examined, which was sought to be attended to expeditiously, if desired, so that the compulsory conference could be held.

3. [3]
   The letter invited the second respondent (which relevantly has control of the first respondent’s interests) to indicate what requirements it had for medical examination of Mr Parker in accordance with the entitlements recognized in ss 46 and 46A. The second respondent still having “in house” representation, Mr Black, the applicant’s solicitor in sending the neuro-surgeon’s report on 5 November 2010 asked for the second respondent’s “panel within a reasonable period, say 14 days so that our client’s claim for damages may proceed to the compulsory conference in a timely and expeditious manner”. The psychologist’s report went under cover of a letter of 12 November 2010 seeking that the second respondent “indicate whether or not you require an independent medical examination in reply” suggesting a reasonable period for response of 14 days and referring to Suncorp Metway Insurance Limited v Snowdon [2005] QDC  312.  The last of the reports was sent on under cover of a letter of 6 December 2010 with a similar request, should the second respondent propose obtaining its own report “so that our client’s claim for damages may proceed to the compulsory conference in a timely and expeditious manner.”

4. [4]
   The second respondent’s response did not come until 1 July 2011, indicating lack of preparedness to participate in a conference and nominating panels of orthopaedic surgeons, psychiatrists and occupational physicians. This letter simply refers to “previous correspondence” . It is difficult to say whether it was a response to Mr Black’s letter of 8 June 20911 and enclosing “our client’s draft statement of loss and damage which has been verified by way of statutory declaration on 2 June 2011” and advising readiness to convene the compulsory conference. It seems that the threatened nomination of a time, date and venue for the conference foreshadowed in the letter of 8 June 2011 was effected by a communication of 5 July 2011 sent before or in ignorance of receipt on the same day of the letter of 1 July 2011. 26 August 2011 was proposed as the time for the conference (as it is in the application before the court). A separate letter of 5 July 2011 forwarded the applicant’s certificate of readiness for the purposes of the compulsory conference. Such a certificate is required by s 51B(5).

5. [5]
   Communication between Mr Black and the second respondent became increasingly acerbic, he (understandably) complaining about belated requests for medical examinations. Under increasing pressure from Mr Black, the second respondent now proposed a fourth panel, of neuro-surgeons. It also indicated specific dates when all but one or two of the persons identified could see Mr Parker. The difficulty that confronted Mr Parker, from the point of view of delay, was that no psychiatrist was available until October 2011. That was not the only difficulty: when it was indicated that Mr Parker was happy to see the neuro-surgeon Dr Coyne, the second respondent withdrew its endorsement of him, on the basis that Mr Parker had been referred to Dr Coyne by his own GP, as the second respondent would have known all along from the report of rehabilitation specialists (Edge Rehabilitation) brought in at the second respondent’s invitation (accepted by Mr Parker) and cost.

6. [6]
   It is somewhat difficult to reconcile the second respondent’s performance with its statutory obligation under s 47 to co-operate with a claimant. In that context, it has to be acknowledged that some things were happening, such as the introduction of Edge Rehabilitation. That said, the position the second respondent, now represented by solicitors, is taking in respect of the compulsory conference is understandable. Perusal of s 51B indicates the seriousness of the compulsory conference which is only to be held if all parties are “ready for trial”. The second respondent’s conduct of the claim clearly leaves it not ready for trial. In principle, there can be no criticism of its desire to obtain its own medical reports.

7. [7]
   I took it to be accepted at the hearing that the court could fix a date for compulsory conference on the basis of an expectation that the parties would, some days before, be in a position to provide the certificate of readiness, which, in the present context, requires at least four medical reports to be provided following attendance by Mr Parker upon their authors. If things go wrong, the court may need to be approached to vary the order about a compulsory conference. It is not a step the court ought lightly dispense with, especially in a case like the present, where the second respondent’s requirements are reasonable ones.

8. [8]
   No doubt there are cases in which claimants or insurers provide certificates notwithstanding that they expect more steps to be taken, perhaps on the basis of understandings about future co-operation that are mutually acceptable. Where, as here, in the case of the second respondent, a participant wants matters attended to in the order which the Act contemplates (namely, medical examinations first), the court must respect that. It would require a strong case to close out an insurer.

9. [9]
   It is necessary to get the claim moving. For that reason, I am inclined to order a compulsory conference by the end of October 2011 on the basis that (as seems feasible on the basis of possibilities ventilated at the hearing) that Mr Parker will attend on the relevant medical personnel nominated by the second respondent by the end of September.

10. [10]
    It was not feasible for the court to give effect to the above view on the hearing on 10 August 2011 given the raising by Mr Williams, for the second respondent, of a serious jurisdictional objection to the application. The time and place of the compulsory conference may be fixed or it may be dispensed with under s 51A(5) by “the court” which means, by the definition in s 4, in relation to a claim, the court hearing a proceeding based on the claim, (and if there is no proceeding, then in that event) “a court with jurisdiction to hear the claim”. The statement of loss and damage referred to above, which is entitled “Draft”, but nevertheless signed and presumably intended to be taken seriously (it is also corroborated by the work of consultants engaged to estimate future economic loss according to various scenarios) is to be taken seriously. It indicates a “claim” far in excess of the District Court’s jurisdiction.

11. [11]
    Presumably because alerted to or apprehensive of the jurisdictional point, Mr Rangiah SC, for the applicant sought leave to leave and file an affidavit of Mr Black expressing his opinion as a solicitor that “on the basis of the medical reports and other information presently available to me, I assess the Applicant’s claim as being within the monetary jurisdiction of the District Court and therefore the amount sought to be recovered would be within that limit.”   Mr Rangiah was not prepared, without instructions, to abandon excess.  Mr Williams submits that Mr Parker has nailed his colours to the mast, so to speak, in quantifying the “claim” and that it is a claim so large that only the Supreme Court can make orders about it.  Recalling that there had been decisions on the topic in relation to the Act or similar legislation, such as the Personal Injuries Proceedings Act 2002, I reserved my decision with a view to identifying them. 

12. [12]
    At the hearing s 85 of the District Court of Queensland Act 1967 was discussed.  Under that section, if persuaded that it did not have jurisdiction to hear and decide the application, the court could have transferred the application to the Supreme Court.  That is what was done in Hale v Global Constructions Management (Qld) Pty Ltd [2009] QDC 262, a PIPA matter in which leave to commence a proceeding under s 43 was sought.  It was clear from the Form 1 Notice of Claim under PIPA that Mr Hale’s claim exceeded the monetary limit of District Court jurisdiction.  I took the view that “the court has jurisdiction, but only to the limited extent of acting in aid of a contemplated proceeding subject to a monetary cap of  $250,000 [as it was then]”.  It was clear that leave of the District Court could not authorize a proceeding in the Supreme Court from Hamling v Australia Meat Holdings Pty Ltd [2005] QCA 415.  That and other decisions were considered by Judge McGill in Australia Meat Holdings Ltd v Higgs [2006] QDC 81, a case under the WorkCover Queensland Act 1996 in which Judge McGill transferred an application seeking an order under the WorkCover Act that the applicant’s notice of claim for damages be deemed compliant.  At [6] in the reasons, his Honour said that whether the claim was within the monetary jurisdiction of this court “would not necessarily be something determined and fixed by the claim made originally in the notice of claim.  However, in the present case there has been nothing to indicate that the applicant is confining the claim made to anything less than the claim in the notice of claim, which was for an amount well in excess of the monetary limit.”

13. [13]
    Mr Williams recalled a matter involving Woolworths as potentially relevant. He later supplied a reference (which my associate had beaten him to ) to Woolworths Ltd v Graham [2007] QDC 301.

14. [14]
    This was another PIPA matter, in which the application sought orders under ss 5, 9, 22 and 35 of PIPA, which the respondent had belatedly complied with, leaving an issue about costs. Judge Searles found the court was without jurisdiction because there was nothing to show that jurisdiction which must be found under s 68 of the District Court of Queensland Act 1967 arose.  This was because there was not before the court “any material to evidence the claim fell within the monetary jurisdiction”: paragraph [7].  His Honour referred to well-known authorities and continued at [13]:

“[13] … for the court to have jurisdiction to entertain the applicant’s substantive application, it is necessary for the applicant to establish that the court had jurisdiction within s 68(1)(a).  There is nothing in the applicant’s material addressing that issue with the result that the applicant failed the threshold requirement of establishing that the court had jurisdiction to hear the application.  Until that requirement is satisfied the inevitable outcome is that the court has no jurisdiction to hear the application.”

[14]  Given that the application is, by its very nature, one of a type to be made before any action is commenced, what material would be normally sufficient to attract the court’s jurisdiction?

[15]  Occasions still arise when an application in the position of the present applicant will not  be able, at point of application, to point to stabilised injuries which allow of a proper consideration of the likely entitlement to damages.  Where the injuries of the applicant have stabilised it would be sufficient in my opinion for the applicant’s solicitor to depose to the relevant facts then available to establish that the damages the applicant might expect to recover would bring the future action within the jurisdictional limit of the District Court.  Where an applicant’s injuries have not stabilised, it seems to me the best an applicant could do is to depose, personally or by solicitor, that, on the facts then known, it is likely that, upon stabilisation of the injuries, it is likely that the entitlement to damages would be within the jurisdiction of the District Court and that it is the applicant’s present intention to commence proceedings in that court when appropriate.  Again, all relevant facts available on the issue should be put before the court.  I cannot see that any more precision could be offered than that.”

15. [15]
    In my opinion, what his Honour said supports the present application as one within jurisdiction, if Mr Black’s affidavit is admitted, as I think it ought to be in the interests of getting to the real issues resolved, notwithstanding Mr Williams’ objection. Mr Rangiah accepted that it was for the court to determine whether or not to transfer under s 85, but eschewed making a request in that regard himself, or doing anything of a positive nature to protect his client’s ability to advance his claim towards resolution in a Supreme Court proceeding.  He will have to do something about that, should, unexpectedly, the plaintiff and his advisors determine, in light of future developments, that damages in excess of the monetary cap limiting this court’s jurisdiction are to be pursued.

16. [16]
    Judge Searles’ suggestion was applied by Judge McGill in Wright v K B Nut Holdings Pty Ltd [2010] QDC 91 (another PIPA case – about provision of information, rather than leave to start a proceeding) at [3]-[6].  It is true that the statement of loss and damage here does nominate a dollar sum that can be compared with the monetary cap on this court’s jurisdiction.  However, that statement does not enjoy what I thought Mr Rangiah described as the statutory status of the notices of claim for PIPA and WorkCover claims.^[1]  It is something redolent of an ambit claim, one proposing multiple scenarios, gratuitously supplied.  It has been supplanted by Mr Black’s affidavit, in my opinion.

17. [17]
    Mr Beirne in his affidavit outlining the history of the matter, justifies his client’s apparent delay in a statement (objected to by Mr Rangiah) that his client until July 2011 “had acted under the assumption that the applicant’s rehabilitation was ongoing”. One wonders how Mr Beirne could know that. He does not say who informed him of it. It is not impressive that Mr Black’s requests were ignored. One would think that the second respondent might have asserted (as might indeed be the case) that it seemed appropriate to wait for a time to ascertain whether the applicant’s condition improves. As Mr Beirne puts it, the applicant’s medico-legal investigations present “the opinion that the applicant is unemployable in terms of his pre-accident occupation as an electrician and he required re-training just to seek alternative employment”.

18. [18]
    Apropos the applicant’s allegations of financial hardship, Mr Beirne reports to the court information he has of the benefits the applicant is presently receiving under an income protection policy and suggests that if financial hardship is occurring, his client will, upon request, consider making an advance payment to him, particularly as liability has already been admitted.

19. [19]
    The delay in this matter could not be said to be inordinate, but the stage has been reached where it is appropriate for the court to do something to advance the applicant’s claim, the need to progress which Mr Beirne says “the second respondent understood”.

20. [20]
    The best way of doing that is to require the parties to proceed as indicated above. I will hear the parties, who may submit in writing and/or electronically, before making orders. My inclination is to order the second respondent to pay costs.